APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
509 N.E.2d 1084, 156 Ill. App. 3d 962, 109 Ill. Dec. 245 1987.IL.828
Appeal from the Circuit Court of Whiteside County; the Hon. Robert W. Castendyck, Judge, presiding.
JUSTICE WOMBACHER delivered the opinion of the court. SCOTT, P.J., and BARRY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER
The plaintiffs, Janet D. Vaughn and Richard L. Vaughn, filed a complaint against the defendants, Adeline Speaker and Janet E. Prescott, co-executors of the estate of Wilbur Speaker, deceased. The plaintiffs sought to recover damages for injuries Janet Vaughn received in an automobile accident. The defendants filed a motion to dismiss alleging that plaintiffs' cause of action was barred by the statute of limitations. (Ill. Rev. Stat. 1985, ch. 110, par. 13-202.) The trial court granted defendants' motion and dismissed plaintiffs' complaint with prejudice. Plaintiffs appeal.
On December 2, 1983, Janet Vaughn and Wilbur Speaker were involved in an automobile accident in which the plaintiff sustained personal injuries as well as property damage to her automobile. The plaintiffs' attorney alleged in an affidavit that negotiations with Wilbur Speaker's insurance company began in December of 1984 and continued up until December 30, 1985, which was after the statute of limitations had run. During this period of negotiations the defendants' insurance company paid 100% of plaintiffs' property claim and offered $15,000 to settle her personal injury claim.
Wilbur Speaker died on January 16, 1985. Defendants' insurance company never notified the plaintiffs or their attorney of Wilbur Speaker's death. William Lego, the claims representative handling the file for the insurance carrier, filed an affidavit stating that he did not know that Wilbur Speaker had died until he received a call from plaintiffs' attorney on December 30, 1985, approximately one month after the statute of limitations had run.
On November 27, 1985, five days before the statute of limitations was to run, the plaintiffs filed an action against Wilbur Speaker to recover for her personal injuries. On December 5, 1985, plaintiffs' attorney received the returned summons which indicated that the defendant was deceased. On December 23, 1985, plaintiffs filed a "Motion to Correct Misnomer" which was granted by the trial court. On December 23, 1985, plaintiffs filed an amended complaint naming Adeline Speaker and Janet E. Prescott, co-executors of the estate of Wilbur Speaker, as defendants. On January 29, 1986, the defendants filed a motion to dismiss which was granted by the trial court and is the subject of this appeal.
On appeal, plaintiffs raise three issues: (1) whether substitution of the executors for the deceased as the named defendant is permitted under either section 2-1008, 2-616, or 2-401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-1008, 2-616, 2-401); (2) whether the six-month claim period provided in section 18-12 of the Probate Act extends the ordinary two-year statute of limitation for an additional six months (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 18-12); and (3) whether the defendants should be estopped from pleading the statute of limitations as a defense.
First, plaintiffs contend that section 2-1008(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1008(b)) permits the substitution of the executor for the deceased. Section 2-1008(b) provides in part: "[If] a party to an action dies and the action is one which survives, the proper party or parties may be substituted by order of the court." (Ill. Rev. Stat. 1985, ch. 110, par. 2-1008(b).) In the case at bar, however, there was no action pending because a dead person cannot be a party to a suit and a suit against a dead person does not invoke the jurisdiction of the trial court. Bavel v. Cavaness (1973), 12 Ill. App. 3d 633, 299 N.E.2d 435.
Plaintiffs also argue that pursuant to section 2-616(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-616(d)) their amended complaint naming the executors as defendants relates back to the date of their original complaint. This argument fails for the very same reason as their section 2-1008 argument. In order for section 2-616 to apply there must also be an action pending against a person not originally named a defendant. (McCue v. Colantoni (1980), 80 Ill. App. 3d 731, 400 N.E.2d 683.) Plaintiffs' attempt to utilize section 2-401 and characterize the original action as a misnomer is also misplaced because an action naming the wrong person cannot be characterized as a misnomer. DeSeve v. Ladd Enterprises, Inc. (1985), 137 Ill. App. 3d 796, 484 N.E.2d 1220.
Plaintiffs next argue that section 18-12 of the Probate Act (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 18-12) allows a claim for personal injuries to be filed for an additional six months beyond the applicable two-year statute of limitations. Generally, a party must commence an action for personal injuries within two years after the cause of action arose. (Ill. Rev. Stat. 1985, ch. 110, par. 13-202.) When a person against whom an action for personal injuries is brought dies before the two-year period expires, however, a party may commence an action against the executors or administrators after the expiration of the two-year period under section 13-209. Section 13-209 provides in part:
"If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, an action may be commenced against his or her executors or administrators after the expiration of the time limited for the commencement of the action, and within 6 months after the ...